Authors Guild sues Google -- Xeni on NPR (UPDATE)

UPDATED: Cory Doctorow weighs in on the debate, at bottom of post.

This morning on the NPR News program Day to Day, I spoke with host Noah Adams about the legal battle Google has on its hands -- from some angry writers.

As blogged here on Boing Boing yesterday, the Authors Guild lawsuit claims that Google's effort to make books searchable and findable on the Internet violates copyright law.

Link to NPR "Writers Sue Google.com over Book Search" segment (airs nationwide, and audio will be archived online after 12PM Pacific / 3PM Eastern)
Previously on Boing Boing:

Authors Guild sues Google over print program

Reader comment: Tony Sanfilippo says,

I don't think you're telling the whole story here. I'm the Tony Sanfilippo quoted in the AP story and who also appears in Google Print's FAQ here.

I have fully embraced Google Print for publishers, even wrote a study delivered at BEA and AAUP about using the Long Tail and Google Print to find new markets for scholarship, but this is entirely different.

Google Print for Libraries has two pretty major flaws. One being giving a digital copy of all of our works to the participating libraries where they will then most likely be used in e-course reserves without any compensation to ether author or publisher. University Libraries have an awful track record at compensating for e-course reserves and post our content frequently without any restrictions or security.

The second being Google will be profiting (through GoogleAds) on this content again without compensating the authors or publishers. Fair use should exclude commercial use. Even Creative Commons licenses (which I grant to my flikr account) gives you that option.

If we expect the production of good scholarship to be a viable, it has to be paid for somehow. I work hard to keep the price of our books as low as possible because I understand accessibility is directly related to cost, but until someone is willing to completely sponsor our work, we must protect our ability to break even.

Reader comment: Jason Schultz counters:
Two quick points:

1) Fair use has always included commercial use. It's a myth that you have to be non-commercial to succeed in being a fair user. 2 Live Crew won a fair use case against Roy Orbison in 1994 by *selling* parodies of their "Pretty Woman" cover. Connectix beat back Sony in 2001 with a fair use defense to protect their Playstation emulator, even though they had to make hundreds of copies of the Sony Playstation operating system to do it. The bottom line with fair use is not whether you are commercial or not but whether you are creating new "transformative" uses of works instead of merely substituting your copies for the original. Here, there is no real argument that anyone is foregoing purchase of a book to use Google Print.

2) If University Libraries are violating copyright with e-reserve copies, then the Author's Guild should sue them and not blame Google. The reason they don't is because that would pit them against educational institutions and librarians, a much harder target to go after, at least in the public eye.

UPDATE: Author and Boing Boing co-editor Cory Doctorow says:
1. "University Libraries have an awful track record at compensating for e-course reserves and post our content frequently without any restrictions or security."

Universities already have a broad exemption to copyright under fair use doctrine. That they compensate authors at ALL for photocopying and web-posting excerpts from copyrighted represents a good-faith compromise, not a failure. And as to "restrictions" -- damned right universities don't use DRM!

2. "The second being Google will be profiting (through GoogleAds) on this content again without compensating the authors or publishers.

Fair use should exclude commercial use. Even Creative Commons licenses (which I grant to my flikr account) gives you that option."

Fair use does NOT require noncommercial use! 2Live Crew's Pretty Woman knockoff was a top-ten commercially released single that was still a fair use of the Johnny Cash Roy Orbison lick.

CC licenses may allow restriction of commercial use, but CC licenses are subordinate to fair use itself (as is stated in the second clause of every CC license). There's nothing in a CC license or the publication of a book that prevents commercial re-use per se (I'm sure that Tony's press's commercial books are themselves filled with fair use quotations).

3. "If we expect the production of good scholarship to be a viable, it has to be paid for somehow."

For starters, Google Print won't take a penny away from a publisher: what publishers are complaining about is that Google's figured out a way to make money from books and isn't proposing to cut them in for a share, but they're treating this new money that Google's making as though it comes out of their end.

As to supporting scholarship, how about our state-supported University system, then? Oh, and the new sales generated by Google Print? Both of these go a long way to supporting scholarship without requiring that universities be denied access to searachble indices of their own bought-and-paid-for collections.

4. "Google Print for Libraries has two pretty major flaws. One being giving a digital copy of all of our works to the participating libraries where they will then most likely be used in e-course reserves without any compensation to ether author or publisher."

If you support scholarship, how can you reject giving UNIVERSITY LIBRARIES searchable digital indices to their own collections because some of them might use them in a way that undermines your bottom line?